The Collin County Commissioners Court voted 4-0 Monday not to pay a $205,000 invoice submitted by the court-appointed prosecutors in the criminal case being brought against Attorney General Ken Paxton.
For more than a year, the commissioners have talked about not paying the bill, which is upwards of $600,000 in all, but their shocking decision comes after a Dallas appeals court told them last week to make up their minds. That court, which had previously stayed the latest payment, is trying to decide whether a taxpayer lawsuit meant to block payment permanently may proceed.
Now, however, even if that lawsuit, which was filed by an acquaintance of Paxton’s named Jeffory Blackard, founders over questions of jurisdiction or standing, the burden shifts to the prosecutors to sue for payment.
The bottom line is that a judge other than George Gallagher is going to take a look at the legality of the arrangement.
When Gallagher first determined that the payment arrangement was legal, few had reason to doubt his impartiality. However, that presumption has come to seem more doubtful in recent months, after Gallagher ordered the trial moved to Harris County at the prosecutors’ request, ensuring an urban jury, and then insisting he would come down to Harris County himself to try the case, despite state law requiring Paxton’s permission to do so.
Paxton’s attorneys have filed for a writ of mandamus over that last question, which would represent a black mark on the judge’s reputation, as those are only granted in cases of lawless behavior.
Texas law says that court-appointed prosecutors “shall receive compensation” in the “same amount and manner” as court-appointed defense attorneys.
It’s up to the local Board of District Judges to set that fee schedule, which usually amounts to a few thousand dollars in Collin County, except in grave matters such as death penalty cases, where $150 an hour is permitted.
A district judge named Scott Becker reached an oral agreement in 2015 to pay Houston attorneys Kent Schaffer and Brian Wice $300 an hour to prosecute Paxton, without ever explaining why he didn’t simply ask a neighboring district attorney to take the case after the local DA recused himself.
The Collin County Board of District Judges has been divided since then over whether its own rules allow for exceptions, but the local administrative judge has allowed it, and visiting judge George Gallagher, who has been presiding over the case, extended the arrangement to a third attorney.
County Judge Keith Self, who presides over the Commissioners Court, had previously expressed the opinion that the only avenue for the commissioners to challenge those payments was in a court of law and that he and his colleagues risked jail for contempt of court if they refused to pay the prosecutors, but that view was corrected by a three-judge panel of the Fifth Court of Appeals last week, which instructed the commissioners to take a vote.
During Monday’s meeting, Blackard reminded Self that “the appellate court said, ‘Yes, you have the right to vote and you’re supposed to vote.’”
One of the appeals court judges had even offered an example of a court-ordered payment that a commissioners court might be duty-bound to oppose, Blackard said.
“One of the judges said this: ‘Can a judge hire his wife and pay her a million dollars?’ That’s on the verge of being illegal.”
Commissioner Duncan Webb, who had previously supported paying the prosecutors, was absent from the meeting.
In court filings earlier this year, Wice and Schaffer threatened to quit the case if they weren’t paid. They have not yet responded to the latest news.
Jon Cassidy can be reached at [email protected]